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Environmental Law Enforcement and Compliance Promotion Frameworks
in Canada and Chile
|
| Regulation Development & Promulgation | Compliance Promotion | Inspections | Investigations | Prosecutions |
|---|---|---|---|---|
| Consultation with regulated communities during regulatory development. | Information to regulated communities. | Set national and regional priorities and inspection plans. Determine target sectors for increased inspections (based upon knowledge, risk, performance). Inspect. |
Determine due diligence. If investigation warranted, apply compliance and enforcement policies by issuing warnings, Ministerial Order, or other action. |
Work with the Department of Justice Canada to prepare court case. |
With all federal environmental and wildlife laws, the following enforcement principles apply:
Promoting compliance is a necessary and effective way to motivate actions of the regulated communities conform with the law. Environment Canada has found that the majority of its regulated communities (referred to as regulatees) will voluntarily comply with new and existing environmental and wildlife laws if they are properly informed and regularly reminded of their obligations. EC achieves this by:
For instance, under the Migratory Birds Convention Act (MBCA) Environment Canada makes regular efforts to increase awareness of the law by attaching to the permit a summary of the regulations, distributing posters with season dates, and bag and possession limits to user groups in each province. The Department has produced an information brochure answering many questions about the Act and has distributed these to organizations and individuals requesting such information. In addition, the Department issues news releases to keep the Canadian public informed on matters relating to migratory birds.
A National Compliance Promotion Plan sets out the promotion activities associated with Environmental Protection Regulatory Programs pursuant to the CEPA 1999 and the Fisheries Act. The Plan provides a record of the compliance activities planned, for each regulation, and carried out by promotion specialists in the five regions and Headquarters. The compliance promotion activities include stakeholder consultations, presentations at seminars, development and dissemination of compliance promotion letters, publications, pamphlets, videos, technical bulletins, compliance guidelines, articles in trade newsletters and magazines, newspapers, the Internet, TV interviews or any other acceptable form of advertisement.
Environment Canada uses the publicity generated by media coverage of enforcement actions to inform the public, and to deter similar offences. Investigations by EC have shown that regulatees who are slow to comply with new or amended laws are more likely to change their practices when they hear of other parties being subjected to enforcement action. In summary, compliance promotion is largely targeted at the vast majority of regulatees who are willing to comply with the laws, given encouragement and the necessary information on how to be in conformity.
Enforcement and compliance monitoring activities related to pollution are coordinated through The National Inspection Plan (NIP). Updated annually, the NIP identifies the number and types of inspections to be carried out by Environment Canada officials under the CEPA 1999 regulations and the pollution prevention provisions of the Fisheries Act each year. The Plan uses a target-oriented approach to focus on national priorities and the most serious environmental risks in each region. For example, the following five regulations were considered national priorities for 2001/2002: Export and Import of Hazardous Wastes Regulations, New Substances Notification Regulations, Ozone Depleting Substances Regulations, and the National Pollutant Release Inventory.
The NIP is developed using input received from enforcement and program managers at the district, regional, and national level on matters such as geographic priorities, local operating considerations, and government-wide and departmental priorities. The priorities and direction of the NIP are set at an annual meeting of the National Chiefs of Inspection, consisting of national and regional enforcement chiefs and directors. Some of the specific considerations in setting priorities and in developing planned inspection activities include but are not limited to: environmental significance, geographic scale, compliance history and profile, nature of the regulatory provisions, operational complexity and capacity, the number and the type of targeted population.
The Plan is designed to enable Regional offices to develop detailed plans for their jurisdictions, and facilitate documentation of actual activities carried out under each regulation. After six months, the results of enforcement activities are assessed and used for "course correction". After nine months, the results are used to help develop the subsequent year’s NIP. Thus, the NIP serves as a planning, information record, and monitoring tool for the pollution inspection activities carried out by Environment Canada each year.
In implementing the NIP, Environment Canada and its partners use a variety of techniques and tools to monitor and enforce compliance with federal environmental laws, including:
A selection of enforcement responses are defined below:
Both on-site and off-site inspections are undertaken to confirm compliance
with regulations. Investigations may be required when non-compliant situations
are discovered.
Inspections
An inspection is an activity that involves verification of compliance with
the environmental or wildlife legislation administered, in whole or in part,
by Environment Canada. An inspection can be carried out on-site; or off-site.
An on-site inspection is one or more visits to the site of a facility or a plant, or visits at a border crossing, an airport, or a port of entry, to conduct any activity/operation required to verify the regulatee's compliance with one regulation or a permit. Sites are owned, leased or controlled by the regulatee. Sites can also include a mean of transport: a ship, an aircraft, a platform, or any other structure.
On-site inspections can involve three (3) subactivities:
An off-site inspection is any activity that is not conducted at the site of a facility, or a plant, or on a mean of transport, a ship, an aircraft, a platform, or any other structure (owned, leased or controlled by the regulatee) or at a border crossing, an airport, or at a port of entry, to verify the regulatee's compliance with one regulation or a permit.
Off-site inspections are normally done at the officer’s place of work or in another place that does not infringe the private life of the person that is targeted by the Act.
Off-site inspections can involve three kinds of subactivities:
Statistics for Inspections are compiled by subject and by regulation, based on the start date of the inspection.
Investigations
An investigation is the gathering and analyzing, from a variety of sources, of evidence and information relevant to a suspected violation where there are reasonable grounds to believe that an offense has, is or is about to occur with regards to the environmental or wildlife legislation administered, in whole or in part, by Environment Canada.
An investigation results from an on-site or an off-site inspection, or an occurrence, and where there is reasonable ground to believe that an offense has, is or is about to occur.
For statistical purposes:
From FY 98/99 to FY 01/02 (inclusively), statistics for investigations were compiled by regulation and by suspect.
As of FY 01/02, investigations will be compiled by investigation file (related to one event) based on the start date of the investigation.
Statistics pertaining to investigations will now be broken down in the following four (4) fields:
Intelligence, refers to the body of knowledge gained through gathering and analyzing information that may provide patterns, trends, and clues about criminal activities the knowledge of which then can be used by inspectors, investigators and wildlife officers in performing their duties.
Enforcement policies have been developed for The Canadian Environmental Protection Act (1999), the Fisheries Act, and one has also been created to guide the application of wildlife laws: The Compliance and Enforcement Policy for Wildlife Legislation.
The CEPA 1999 Enforcement and Compliance Policy establishes the principles for fair, predictable and consistent enforcement. It informs all parties who share responsibility for protecting the environment (governments, industry, organized labor and individuals) about what is expected of them and what to expect from the officials who promote compliance and enforce regulations. The Policy also explains the range of enforcement responses to violations that might be taken by Environment Canada enforcement officials, and provides guidance on the appropriate form of response to different situations. This policy is available on the Internet at http://www.ec.gc.ca/ele-ale/policies/policies_e.asp.
In 1995, a supplemental directive was issued that sets out the process for dealing with offenders of all legislation administered by Environment Canada. The directive emphasizes that enforcement decisions are the responsibility of regional officials, must be consistent with the CEPA 1999 Policy, and provides additional direction to enforcement officers on the division of powers and responsibility within EC, and the types of response that may be taken at each level within the organization.
The Wildlife Compliance & Enforcement Policy was created to facilitate coordinated and consistent compliance and enforcement activities and responses by the various partners responsible for protecting wildlife in Canada and abroad. The policy is designed to guide Wildlife Enforcement Officers in the application of the Migratory Birds Convention Act, the Wild Animal and Plant Protection and Regulation of International and Inter-provincial Trade Act, the Species at Risk Act, the Canada Wildlife Act, and the regulations associated with the legislation. This policy is available on the Internet at http://www.cws-scf.ec.gc.ca/enforce/pol_1_e.cfm.
The EPS Enforcement Branch measures the effectiveness of its actions by verifying compliance among the three groups of regulatees it has defined as: Chronic Offenders, the Compliant Majority, and Performance Leaders, illustrated in Figure 2.
Figure 2: Regulatee Compliance Groupings
A variety of mechanisms are used to verify compliance rates within each group, including: inspections, taking of samples, self reporting, auditing reports, responding to tips, and investigations. Random spot checks and auditing activities help to gauge overall levels of compliance within an entire regulated population. Targeted enforcement activities help to define the magnitude and severity of problems within the group of Chronic Offenders. However, because this group by its nature is non-cooperative, the exact size and effect of non-compliance by Chronic Offenders can be difficult to quantify.
Environment Canada is continuing to examine ways to better monitor compliance with the laws for which it is responsible, and in turn the effectiveness of its enforcement activities in ensuring that laws are complied with. Table 1 presents a sample of enforcement activities for fiscal year 1998-1999 to 2001-2002.
Table 1: Enforcement Activities
Enforcement of environmental and wildlife legislation requires specialized knowledge and skills, therefore, Environment Canada places a high priority on staff training.
The Training and Learning Division of the Environmental Protection Service’s Enforcement Branch directs enforcement training across Canada for pollution law enforcement. Enforcement officers and analysts are trained in duties ranging from basic inspection and investigation skills to very specialized regulation-specific enforcement activities. Example courses include the following:
Environment Canada also prepares a variety of educational materials including a health-and-safety reference book, a safety training program, and a National Sampling Protocol for enforcement officers. Environment Canada’s pollution law enforcement officers receive an average of about twenty days per year of formal training as well as informal on-the-job mentoring by experienced officers. A proportion of nationally-mandated training is designed by teams consisting of project leaders, learning professionals, and subject matter experts (for example, experts involved with the development of regulations and regional enforcement officers). The resulting courses are delivered by subject matter experts, who receive training on how to facilitate learning and deliver the course materials. Some training is offered by consultant firms who specialize in their subject matter, such as the use of health and safety or sampling equipment, or by the Royal Canadian Mounted Police, who deliver training on the application of peace officer powers in the enforcement of CEPA 1999 and the Fisheries Act.
New pollution law enforcement officers receive a total of seven weeks’ basic training through the General Enforcement Training and the Pollution Law Enforcement Course. These courses covered both the general application of peace officer powers and content related specifically to Environment Canada’s pollution legislation, policies, and procedures such as inspections, sampling, and investigations.
Other enforcement-related training offered to pollution law enforcement officers this year included the following courses:
In addition, a project is underway to redesign the basic training as part of a national Pollution Law Enforcement Officer Learning Program which will be more flexible and aligned with a national competency-based human resources management strategy.
Wildlife Officers Training
The Inspections and Training Division of the Environmental Conservation Service’s Enforcement Branch directs enforcement training across Canada and internationally. Wildlife Officers and partners are trained in duties related to the work of the three Divisions. Example courses include the following:
WAPPRIITA Course
MBCA Course
The Identification and Handling of Reptiles and Emergency Procedures (in collaboration
with EPS)
An Introduction to the Identification of Orchids in Trade
Handling of Hunting Trophies
Firearm Course
Use of Force Course
Intelligence Course
Surveillance Course
Train the Trainer Course
The Division also prepared a variety of educational materials including a series of CITES Identification Guides on Birds, Crocodilians, Turtles and Tortoises, Butterflies, Sturgeons and Paddlefish, Tropical Woods, Hunting Trophies. These guides are published in French, English and Spanish and some have been translated in Mandarin and Japanese. They are published in collaboration with governmental or non governmental agencies, as TRAFFIC, the CITES Secretariat, Safari Club International. They are distributed worldwide and are sold at cost recovery or offered to wildlife and customs agencies implementing CITES, at the cost of handling and shipping.
The Division has helped in the delivery of the CITES Secretariat Courses in Africa, Europe and Asia and still plays an active role with the Secretariat. The Division is very active in training activities with the US and Mexico. The Division participated to the production of the CITES Course for the World Customs Organization. and has been developing with Revenue Canada and the CITES Secretariat a interactive CD course on CITES in the three official languages.
Environment Canada’s wildlife officers receive an average of about ten days per year of formal training as well as informal on-the-job mentoring by experienced officers.
The courses are prepared by Inspections and Training Division’s personnel, sometimes in collaboration with consultant firms or subject matter experts.
New wildlife officers are offered courses on the national legislation they will be applying.
The National Enforcement Management Information System and Intelligence System (NEMISIS) is an electronic database available to EPS enforcement officers (inspectors, and investigators), ECS (wildlife) enforcement officers and management to record and track all pertinent information related to occurrence reports, inspections and investigations.
Developed in 1997, NEMISIS has greatly enhanced the ability of EC to provide timely statistical and detailed reports on enforcement activities requested by the public, the media and interested groups. It has also enabled the Department to implement common definitions for enforcement activities across the five regions and headquarters. Now, most enforcement data is logged in a consistent and traceable manner, and is not labour intensive to obtain or verify.
As a management tool NEMISIS can be used to monitor trends, set priorities and prepare regular and special purpose reports. For instance, in addition to this Report, three mandatory reports on enforcement (or containing enforcement material) are prepared: the CEPA 1999 Annual Report as legislated by Parliament, the Fisheries Act Annual Report to Parliament (for the pollution prevention provisions) and the Commission for Environmental Cooperation Annual Report on Enforcement as mandated by the North American Agreement on Environmental Cooperation (NAAEC) side agreement to the NAFTA. Increasingly, these reports contain statistical information obtained from NEMISIS.
Phased implementation of NEMISIS has occurred since 1997, and database enhancements are being planned and incorporated on an on-going basis. CITES permits are now issued through NEMISIS. In the future, selected public information will be accessible through Environment Canada’s web site.
When environmental regulations were incorporated into Chile’s Constitution in 1980 , it was the first time that a legal text of such importance provided for the right of citizens to live in a pollution-free environment. Specifically, regulations issued by D.S.N. 1.150 Ministry of Internal Affairs in October of that year made the State accountable to "ensure that this right is respected, and to protect nature conservation" (Art. 19, No. 8).
In order to guarantee the full implementation of the environmental safeguard, the Constitution incorporated this provision under the “right of resource protection” (Art. 20, Para. 2). Furthermore, provisions were included that recognized the social function of property, and the need for measures to "conserve environmental heritage" (Art. 19, No. 24).
While the 1980 amendments represented an important moment in the legal history of Chile, environmental regulations had been included in various pieces of federal legislation for many years prior. Thus, numerous legal documents have environment related regulations that predate acceptance of the need for environmental protection by Chilean society as a whole.
At present, there are approximately 1,300 legal provisions directly or indirectly related to the environment. These included for example, legislation in effect since 1916 (Law No. 3,133, recently superseded by Law 19,821 of 2002) or the 1946 Forestry Law. These older regulations refer to environmental issues either in a direct or indirect manner at two different levels: those issued by the appropriate authorities and those referenced in national legislation, such as international agreements and treaties. (Annex 4 lists the most important of these internal environmental regulations and the international agreements to which Chile is signatory.)
The constitutional provision for the protection of the environment became enforceable when Law 19.300, the General Environmental Law (LBMA) was published in March 1994. The LBMA is the basic instrument used for implementation of national environmental policy. In essence, the Law serves two functions: it sets out the "operational" tools needed to implement the constitutional provisions, and the "institutional" framework needed to manage those tools.
The LBMA has several goals, the first of which is to reinforce the specific contents and the legal scope of the constitutional safeguard of environmental rights (Art. 19, No. 8.) The second goal is to create an institutional framework able to deal with existing environmental issues and to prevent future environmental problems at the national level. For this purpose the Law called for the creation of the National Commission of Environment, now decentralized into Regional Commissions of Environment. The third goal of the Act is to create the necessary instruments for environmental management, such as a system for the evaluation of environmental impacts, quality-control regulations, as well as requirements for pollution prevention and decontamination planning.
A small number of provisions (92 permanent and 7 transitory articles) provide guiding principles, basic conceptual definitions, and the key mechanisms needed for modern and comprehensive management of the environment. While supporting the above-mentioned goals, the LBMA makes possible the development of consistent and realistic environmental policies through application of the principles of public participation, pollution prevention, progressive action, and accountability.
The General Provisions section contains the basic articles of the Act. The second article, for example, includes several definitions, the most important of which are contained in Annex 5.
The LBMA accords environmental responsibilities to all government ministries, and established the National Commission for Environment (CONAMA) to fulfill a coordinating role. CONAMA’s structure acknowledges the horizontal character of the issues it deals with, and the active role that various Ministries have to play in the development and enforcement of environmental policies. CONAMA is a legal entity with its own capital resources, functioning under the supervision of the President of the Republic through the Ministry General Secretariat of the Presidency. The Minister of Secretary General of the Presidency leads CONAMA’s Board of Directors, which consists of Ministers from 13 departments.
An Advisory Council is used by the Board to gather a cross-section of opinions, and to fulfill other legal requirements. Advisory members are drawn from business and labour, and non-government organizations devoted to the protection and study of the environment.
CONAMA is managed by an Executive Director and administered through a decentralized public service via Regional Commissions for Environment (COREMAS). The Executive Director is responsible for the implementation and enforcement of the provisions of the law, and for carrying out the agreements and guidelines set by CONAMA’s Board of Directors. COREMAS are the organizations through which the mandate of CONAMA is carried out in Chile’s 13 administrative regions.
Each COREMAS is governed by a group consisting of the Regional Governor (Intendente), who is also the Chair, the governors and regional secretaries of the Ministries sitting on the Board of Directors, four regional councilors, and a Regional Director of CONAMA. COREMAS have responsibilities under laws of the republic but may also develop regional policies for the protection and enhancement of the local environment.
In Chile, environmental enforcement is undertaken on a sectoral basis, and is primarily the responsibility of individual government Ministries to effect. CONAMA, particularly its Board of Directors, is responsible for the development and application of mechanisms to facilitate a coordinated regulatory and enforcement response. These mechanisms, (coupled with the management tools of the National Environmental Management System and a public participation process) allow for the effective design and implementation of a comprehensive environmental management system. Specific responsibilities of CONAMA include the following:
Projects and activities falling under the System of Environmental Impact Assessment have greater approval and compliance requirements than those not subject to the System. An entire project, not just particular elements or impacts thereof, must be considered in the assessment, including matters of a qualitative nature that may not be specifically regulated. Projects and activities approved under the Environmental Impact Assessment System require an integrated enforcement approach and have a very different dynamic to the norm. For instance, where a pollution prevention or decontamination plan has been approved, all subsequent activities must comply with the requirements of that plan, and approval of the whole does not allow for deviation from the plan on certain items [Article 46]. Inspections under the System of Environmental Impact Assessment are conducted by Regional Commissions for Environment, or by the National Commission for Environment if the plan comprises more than one region.
CONAMA also possesses coordination powers for dealing with environmental matters not related to the above Evaluation System of Environmental Impact Assessment, such as the management of natural resources.
In summary, the two key powers of CONAMA are to coordinate and guide the enforcement process under the System of Environmental Impact Assessment, and to ensure the enforcement of pollution prevention and decontamination plans.
At the same time, there are several other agencies of the State Administration that have enforcement powers concerning environmental issues. These entities develop their own programs, training activities, and action plans, etc. The most important players are the following:
The State Customs Office (Dirección General de Aduanas) is in charge of controlling the import and export of merchandise harmful to the environment and to human health along coastal and land borders, and at airports of the Republic.
The Chilean Police (Carabineros de Chile) has specific police duties, especially in forestry and hunting matters.
Municipalities (Municipalidades) enforce household waste and environmental sanitation at the local level, to meet the needs of the community.
The Agriculture and Livestock Service (Servicio Agrícola y Ganadero) contributes to the agricultural development of the country by conserving and preserving renewable natural resources required for agricultural output. It is also responsible for ensuring compliance with legal standards and regulations on the prevention and eradication of plant pests and contagious animal diseases laws governing hunting and pesticides for agricultural use.
The National Fisheries Office (Servicio Nacional de Pesca) is in charge of compliance promotion and enforcement of the General Fisheries and Agriculture Act; and is responsible for the protection of marine life in all of Chile’s water systems.
The State Waters Office (Dirección General de Aguas) protects and plans water resources, and is responsible for ensuring compliance with the Water Code.
The State Office for Territorial Waters and Merchant Navy (Dirección General del Territorio Marítimo y Marina Mercante) is responsible for preventing marine contamination and protecting the aquatic environment. It does this by enforcing the Navigation Act, and regulating the discharge of industrial effluents to watercourses. It must also regulate, enforce, and comply with all current national guidelines and with the international conventions signed by Chile concerning the prevention of marine contamination and the protection of the aquatic environment.
The goal of the Metropolitan Health Environment Service (SESMA - Servicio de Salud Metropolitano de Ambiente) is to "protect public health from all environment related risks". SESMA is in charge of implementing the Health Code, its regulations, and decrees in all metropolitan areas. It also enforces compliance with standards for atmospheric emissions from urban areas and is in charge of controls over solid waste.
Health Services (Servicios de Salud) has a department in charge of environmental issues—the Department for Environmental Programs. This department develops environmental programs for Health Services and supervises, coordinates and evaluates the activities of this service. It also cooperates in the preservation, improvement and restoration of the quality of the environment.
The National Geology and Mining Service (SERNAGEOMIN - Servicio Nacional de Geología y Minería) is in charge of the regulation of dams and reservoirs (which can cause environmental damage), and the development of applied geologic research initiatives to provide technical and scientific information related to natural phenomena that can be used as a basis for planning in various regions of the country.
The Ministry of Transport and Telecommunications (Ministerio de Transporte y Telecomunicaciones) is responsible for compliance verification and the enforcement of regulations governing emissions from motor vehicles.
The Superintendence of Electricity and Fuel (SEC - Superintendencia de Electricidad y Combustibles) is responsible for enforcing compliance with the rules, regulations and service contracts with respect to electricity and gas supply as well as regulating and controlling the quality of fuels.
The Superintendence of Sanitation Services (SSS - Superintendencia de Servicios Sanitarios) is in charge of enforcing the proper provision of sanitation services. It develops and enforces technical standards regarding sanitation and the control of industrial liquid waste.
The mission of the National Woodland Corporation (CONAF - Corporación Nacional Forestal) is the conservation, protection, management, and sustainable use of Chile’s renewable resources. In order to be able to carry out its objective, this institution is authorized to enforce forestry management programs.
The National Heritage Council (Consejo de Monumentos Nacionales) is in charge of protecting areas, archeological remains, buildings or objects of historic or artistic importance. This Council is a technical body run by the Ministry of Education.
Environmental evaluation and enforcement activities are usually simultaneous, and, on occasion, are considered to be very similar. Nevertheless, it is necessary to describe them individually. The Methodology for Environmental Control and Inspection Plans and Environmental Audits, CONAMA, 1995 distinguishes these activities as follows:
At present, there are three types of enforcement methods applied to activities that may harm the Chilean environment:
CONAMA is presently developing a basic framework of environmental regulations to address weaknesses and shortfalls affecting the national inspection system. The goal is to strengthen environmental enforcement duties within various sectors at the national and regional level, and to foster greater inter-institutional coordination. Special attention is being given to enforcement of the Evaluation System of Environmental Impact Assessment.
The government’s environmental policy is aimed at restructuring and modernizing the environmental enforcement system through development of mechanisms such as auto-regulation, compulsory declaration of pollutant emissions, grading of industrial activities at a national level, and the implementation of a comprehensive inspection system. CONAMA is also examining the development of voluntary and economic mechanisms.
One of the objectives of the Environmental Policy for Sustainable Development is to strengthen environmental institutions at the national and regional level. One of the areas of work undertaken was to develop plans and programs for the continuous training of officials responsible for the National Environmental Management System. This is being carried out through the development of training programs, scholarships, short-term courses and post-graduate education.
Another initiative undertaken was the creation of the National Environmental Information System (SINIA), an important tool used to enable easier access to information and improve institutional coordination on environmental issues. It is a decentralized system that supports environmental management and decision-making at the sector and regional level. It is coordinated by CONAMA and relies on information received from public institutions with environmental competence, and generated through CONAMA’s activities.
Initiatives and tools were designed to help promote global and sectoral efforts on environmental issues. The best example is the creation of a consolidated environmental budget that includes the expenses of all ministries and other government bodies that monitor environmental management. This resulted in a permanent accountability mechanism that enables monitoring of the conditions and measures under which projects submitted to the Evaluation System of Environmental Impact Assessment are approved. Created and implemented during the second semester of 1998 and with the help of various mechanisms, 94 projects under way or in operation were monitored in Chile that year. Furthermore, a study was conducted to estimate the budget expended by 14 ministries and other state departments in implementing the National Environmental Management System.
The structure of the Estimated Global Environmental Budget (PAGE) enables response to three basic questions concerning the National Environmental Management System.
A connection can be drawn between the historic background and the Environmental Policy for Sustainable Development. Analysis conducted to date indicates that the majority of resources assigned to environmental management have been directed at three key objectives which are: to restore and improve environmental quality; to prevent environmental deterioration; and to encourage the protection of environmental heritage and the sustainable use of natural resources
In January 1993, the Ministry General Secretariat of the Presidency and the Service for the Health of the Environment of the Metropolitan Region (SESMA) signed an agreement to jointly implement a Program for the Control of the Emissions from Permanent Sources (PROCEFF). This agreement was the first step required to implement recommendations contained in Development of the State Capacity for Control of Permanent Sources, a study required by the Special Commission for Decontamination of the Metropolitan Region (CEDRM). The study recommended a control program for permanent sources, including the institutional organization, the work methodology, and the technical, human, and financial resources needed to carry it out.
Future plans call for the development of the following:
As this document outlines, environmental control in Chile was the responsibility of several public offices, and sector based. Enforcement programs were implemented in diverse areas and, in certain cases, functions were duplicated or difficult to undertake. In recent years, the need to organize this process into a coordinated, consistent and comprehensive system became apparent.
In this context, and that of the present Evaluation System of Environmental Impact (SEIA), the demands placed on CONAMA regarding control activities have grown. Consequently, CONAMA developed, in collaboration with various ministries and departments, an action plan regarding enforcement policies. The general goals of the plan are the following:
In order to achieve these goals, CONAMA’s Board of Directors approved the establishment of Environmental Enforcement Operating Committees at both the national and regional level in June 1999. As of that September, thirteen Regional Committees were established throughout the country, each with representation from all state bodies having environmental enforcement powers. Regional CONAMA Directors are tasked with coordinating and facilitating the administrative activities of the Committees, such as enforcement, document verification, and environmental audits.
The National Environmental Enforcement Operating Committee is to include all central public bodies with environmental enforcement powers. The Committee will be coordinated by the Executive Management of CONAMA, which will facilitate implementation of enforcement activities and compliance with environmental commitments and regulations assigned under "intra-regional" projects.
In accordance with the first main point of the policy and as stipulated in Art. 64 of Law 19.300, a proposed follow-up and enforcement process has been developed for the Environmental Impact Assessment System (SEIA). The process focuses on the following issues:
The objective of the enforcement program is therefore to follow up on all the projects submitted to the Environmental Impact Assessment System. Priority will be given to larger or more complicated projects so as to achieve a high level of compliance, in the medium term, with commitments required under the environmental assessment.
In 2000, a total of 416 projects were submitted for enforcement; environmental enforcement agencies and CONAMA conducted on-site inspections on 334 of these projects.
A total of 534 projects, including intra-regional projects, are scheduled for enforcement in 2001. This objective could rise by approximately 10%.
The institutional objective set for 2002 was the enforcement of 500 projects with approved Environmental Qualification Resolutions. A total of 565 projects were submitted for enforcement. The 2002 Enforcement Program had an institutional compliance level of 113%.
For 2003, the institutional objective was to assess a total of 300 projects with approved Environmental Qualification Resolutions.
Environmental assessment of planned projects or activities in the Antarctic Territory is conducted by CONAMA together with other public institutions. In 2001, 4 projects were assessed and approved. 13 projects were submitted for assessment in 2002 and all were approved. By July 31, 2003, 4 projects had been submitted, which are currently (August 2003) undergoing assessment.
In accordance with the second main point of the policy, efforts were made to develop a proposed enforcement policy, which basically includes the most relevant issues raised by the Council of Ministers, and that will focus primarily on a management development plan.
On August 23, 2001, CONAMA, under the auspices of the Canada – Chile Agreement on Environmental Cooperation, conducted a workshop entitled “Sistemas de Información en la Fiscalización Ambiental y su Posibilidad de Implementación en Chile [Environmental Enforcement Information System and Possibility of Implementation in Chile]”. Participants included representatives from Environment Canada, public enforcement agencies and CONAMA environmental authorities.
Participants at the workshop studied and extensively reviewed NEMISIS. This demonstrated our country’s profound interest in continuing to work with Environment Canada to implement this system in our country. There is no doubt the system will make a major contribution to national environmental enforcement efforts, in particular by providing efficient strategic information and facilitating implementation efforts; it may also help optimize public resources both human and financial. CONAMA made a commitment to begin developing the Sistema de Información sobre Fiscalización Ambiental Nacional [National Environmental Enforcement Information System], which is currently at the evaluation phase.
As the authority tasked with enforcing various environmental standards, the Agriculture and Livestock Service (ALS) conducted the following enforcement activities over this period.
| Regions | 2000 | 2001 | 2002 |
|---|---|---|---|
| I | 5 | 2 | 22 |
| II | 4 | 94 | 67 |
| III | 38 | 33 | 34 |
| IV | 89 | 201 | 40 |
| V | 82 | 485 | 549 |
| MR | 64 | 45 | 127 |
| VI | 480 | 579 | 261 |
| VII | 300 | 103 | 215 |
| VIII | 793 | 402 | 479 |
| IX | 46 | 40 | 43 |
| X | 155 | 167 | 204 |
| XI | 43 | 20 | 2 |
| XII | 117 | 85 | 112 |
Enforcement of Environmental Qualification Resolutions, 1997 to 2002
This activity enforces compliance with quality standards established by DS 185 and DS 04, as well as decrees providing decontamination plans for major sources of smoke emissions, based on monthly reports from the management of the following sources:
Hernan Videla Lira Smelter, Huasco Pellet Plant, Ventanas Industrial Complex (Ventas Smelter and Refinery and Gener Thermoelectrical Plant, Chagres Smelter and Calentones Smelter).
The enforcement figures for environmentally approved sources of smoke emissions are not included. These are accounted for under Environmental Qualification Resolutions enforcement.
| Region | Number of Sources | Monitoring Reports | Total |
|---|---|---|---|
| III | 2 | 12 | 24 |
| V | 3 | 12 | 36 |
| VI | 1 | 12 | 12 |
| Total | 6 | 36 | 72 |
The ALS enforces compliance with the provisions of Article 11, DFL 3557 of 1980, which state that technical and practical measures shall be adopted to avoid or prevent pollution.
The Regions shall adopt a national water monitoring system to control possible pollution close to sources used for irrigation or livestock watering.
Monitoring of some 60 to 80 sources of effluents takes place in Regions IV to X, with particularly good results in Region VII.
Regions II, XI and XII are gathering data for the physico-chemical mapping of surface bodies of water which will produce an objective definition of the quality of their watersheds.
This Report has provided an overview of environmental law enforcement in Canada and Chile. Despite differences between the two countries in enforcement matters – ranging from structural to operational – there are various synergies that Canada and Chile can focus on to achieve the objective of enhancing compliance with, and enforcement of, environmental laws and regulations.
Environmental law enforcement in both countries plays an important role in the protection and conservation of the environment from threats and risks caused by human and industrial activities. Not only is this a concern of governments, but also of public interest.
However, environmental protection and enforcement activities are subject to general government constraints, including limits on recruitment of staff and operating budgets. Out of these constraints has emerged cooperation between federal and provincial governments in the pursuit of goals with significant commonalities.
While general government constraints are common to both Environment Canada and CONAMA, albeit on different scales, the sharing of experiences and cooperative activities has led to mutual learning and development.
Environmental law enforcement is an important aspect of the CCAEC. Articles 14 and 15 of the Agreement set out a mechanism whereby citizens can make an assertion that a Party is failing to effectively enforcing its environmental laws. An independent Joint Submissions Committee reviews the assertion to determine if it warrants a response from the Party in question. After a response is provided, the Joint Submissions Committee reviews the submission, in light of the response, and recommends to Council whether or not a factual record is warranted. If a Party agrees with the recommendation, a factual record will be prepared and may be made public. Since June 2000, four submissions have been filed under Article 14 of the CCAEC. Information on citizen submissions, including a submissions registry, is available on the Commission’s websites.
In addition, Part Five, Article 22, of the CCAEC states that either Party may request consultations with the other Party regarding whether there has been a persistent pattern of failure by the other Party to effectively enforce its environmental laws. In such consultation, the Parties shall make every attempt to arrive at a mutually satisfactory resolution of the matter. While this article has not been invoked to date, it highlights a mechanism of accountability of enforcement between the two countries. Moreover, it encourages resolution through cooperative and mutually satisfactory means.
In spite of the various historical, constitutional, and geographic differences between Canada and Chile, the two countries are entering their seventh year of cooperation in enforcement activities under the CCAEC. Since the entry into force of the CCAEC, the relationship between the two countries has continually grown deeper, not only with regard to environmental cooperation, but other fora as well. By reporting on environmental law enforcement and compliance promotion frameworks, this report aims to facilitate the exchange of knowledge information on Canadian and Chilean enforcement activities in an endeavour to fulfill the objectives of the CCAEC.
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Last updated: 2004-03-08
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